Erratic attendance can disqualify employee from ADA protection

Dan Jovanovic was one of the tool and die makers that kept the In-Sink-Erator manufacturing plant running. But Jovanovic had an erratic attendance record, missing 24 days in 12 months.

After many warnings, he was fired. That's when Jovanovic, who suffered from asthma and Barrett's esophagus, filed suit under the Americans with Disabilities Act (ADA).

A district judge ruled in favor of the company, saying that "the only imaginable accommodation would be an open-ended schedule that would allow Jovanovic to come and go as he pleased." And that, the courts noted, would be unreasonable.

The 7th Circuit ruled that "regular attendance is usually an essential function" of most jobs. Still, it didn't say that a person with erratic attendance could never qualify for protection under the ADA. It also failed to define how erratic a worker's attendance has to be to disqualify him from ADA protection. That decision must be made on a case-by-case basis. (Jovanovic v. In-Sink-Erator, No. 98-3726, 7th Cir., 2000)

Advice: If attendance is important to your company, set clear requirements and enforce them in an evenhanded manner. If applicable, the job description should state that regular attendance at work is an essential function of the job. Because employers are generally entitled to determine the qualifications for a particular position, having such policies and rules in place will make it easier for you to maintain that employees who broke the rules were unqualified.